Decision

Bargaining Unit Decision

Updated 14 September 2020

Case Number: TUR1/1144(2019)

21 August 2020

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DETERMINATION OF THE BARGAINING UNIT

The Parties:

UNISON

and

We Are With You (formerly known as Addaction)^{[footnote 1]}

1. Introduction

1) UNISON (the Union) submitted an application to the CAC dated 13 November 2019 that it should be recognised for collective bargaining purposes by Addaction (the Employer) for a bargaining unit comprising “all Addaction staff engaged on the Wigan Council-commissioned drug and alcohol rehabilitation service for adults and young people contract”. The location of the proposed bargaining unit was given as Wigan and Leigh with the Union adding “Staff work from two offices in the Borough: Coops Building in Wigan and Kennedy House in Leigh”. The CAC gave both parties notice of receipt of the application on 13 November 2019. The Employer submitted a response to the CAC dated 19 November 2019 which was copied to the Union.

2) In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chair established a Panel to deal with the case. The Panel consisted of Mr Barry Clarke, Panel Chair, and, as Members, Mr Nicholas Caton and Ms Fiona Wilson. Mr Clarke was replaced as Panel Chair on 5 August 2020 by Professor Gillian Morris for the purposes of this decision and any subsequent stages of the application. The Case Manager appointed to support the Panel was Nigel Cookson.

3) By a decision dated 28 January 2020 the Panel accepted the Union’s application. The parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit. As no agreement was reached, the parties were invited to supply the Panel with, and to exchange, written submissions relating to the question of the determination of the appropriate bargaining unit. The parties were given notice that a hearing would be held on 31 March 2020 in London and that submissions should be sent to the CAC by 23 March 2020. Subsequently the Panel Chair decided that, in the light of the Government’s guidance on the Covid-19 pandemic, the scheduled hearing could not go ahead in the form that had been notified. In a letter from the Case Manager dated 18 March 2020 the parties were informed of this decision and consulted on the alternative procedure to be adopted. In an email to the Case Manager dated 19 March 2020 the Union stated that its preferred option would be for the CAC to make its decision on the papers without an oral hearing. In an email to the Case Manager dated 23 March 2020 the Employer stated that, given the significance of the hearing and the impact of the potential outcome for the Employer and its employees, it would prefer that the hearing still took place and was content for this to be done via video conferencing. The Employer said that it did not want a decision to be based on paper submissions and written questions alone.

4) In a letter to the Employer dated 25 March 2020 the Case Manager, at the direction of the Panel Chair, asked the Employer to clarify why the significance of the hearing and its impact on the Employer and its employees had a bearing on the format of the hearing and, specifically, to explain how a hearing (sic) on the papers, with a facility for written questions, was inconsistent with either of these concerns. In an email to the Case Manager dated 27 March 2020 the Employer said that it was potentially agreeable to a decision being made on the basis of the papers with the facility for written questions. The Employer requested that the parties should have a right to respond in writing to each other’s initial written submissions, as filed on 23 March 2020. In a letter from the Case Manager dated 27 March 2020 the parties were informed that the Panel Chair had consented to the Employer’s proposal of a further process of submissions in reply and that any party who wished to provide further submissions for consideration by the Panel should do so by no later than noon on 10 April 2020.

5) In accordance with the procedure set out in paragraph 4 above the Panel has made its decision on the basis of the parties’ initial written submissions (“the initial submissions”); each party’s written response to the initial submissions of the other party (“the second submissions”); and information sought by the Panel from the parties following receipt of the second submissions. The Panel is grateful to the parties for their compliance with this process in a timely manner. The decision begins by clarifying the scope of the Union’s proposed bargaining unit. It then summarises the submissions of each party in a form which includes their initial written submissions amended or supplemented, as appropriate, by their second submissions, although the source of a specific submission is indicated where the Panel considers this material. This is followed by the additional information relating to the roles of specified managers provided by the parties in response to questions from the Panel.

6) The Panel is required, by paragraph 19(2) of Schedule A1 to the Act (the Schedule), to decide whether the Union’s proposed bargaining unit is appropriate and, if found not to be appropriate, to decide in accordance with paragraph 19(3) a bargaining unit which is appropriate. Paragraph 19B(1) and (2) state that, in making those decisions, the Panel must take into account the need for the unit to be compatible with effective management and the matters listed in paragraph 19B(3) of the Schedule so far as they do not conflict with that need. The matters listed in paragraph 19B(3) are: the views of the employer and the union; existing national and local bargaining arrangements; the desirability of avoiding small fragmented bargaining units within an undertaking; the characteristics of workers falling within the bargaining unit under consideration and of any other employees of the employer whom the CAC considers relevant; and the location of workers. Paragraph 19B(4) states that in taking an employer’s views into account for the purpose of deciding whether the proposed bargaining unit is appropriate, the CAC must take into account any view the employer has about any other bargaining unit that it considers would be appropriate.

2. Clarification of the Union’s proposed bargaining unit

7) In its request to the Employer, and application to the CAC, the Union described its proposed bargaining unit as “all Addaction staff engaged on the Wigan Council-commissioned drug and alcohol rehabilitation service for adults and young people contract”. In its initial submissions, the Union stated that it wished to include all staff employed in Wigan and Leigh on the Wigan Council contract in the bargaining unit with the exception of the Service Manager. In a letter to the Union dated 1 April 2020 the Case Manager drew the Union’s attention to the fact that in its request for recognition and application to the CAC no role had been excluded. The Case Manager said that the Panel wished to point out to the Union that the consequence of advocating a different bargaining unit to that contained in the request and application was that priority would no longer be given to the bargaining unit originally proposed and that alternative bargaining units proposed by the parties, including the one excluding the Service Manager, would be treated on an equal footing. The Union was invited to inform the CAC immediately if it had not intended to change the definition of its proposed bargaining unit so that the Employer could tailor its final submissions accordingly. In an email to the Case Manager dated 1 April 2020 the Union confirmed that its intention was not to change the definition of the proposed bargaining unit. The Case Manager sent a copy of the Union’s email to the Employer the same day.

3. Summary of the Union’s submissions

8) The Union submitted that the guidance given by Buxton LJ in Kwik-Fit (GB) Ltd v CAC [2002] IRLR 395 should be borne in mind when considering the Union’s proposed bargaining unit, namely, that the statutory test is set at the comparatively modest level of appropriateness, rather than that of the optimum or best possible outcome. The Union also pointed to the guidance given by Underhill LJ in Lidl Ltd and CAC v GMB [2017] IRLR 646 at [15-17].

9) The Union said that the Employer’s service in Wigan and Leigh, which had been commissioned from the Employer by Wigan Council, had its own service manager and was operationally distinct from the Employer’s services that operated outside the boundaries of Wigan Council. The Union disagreed with the Employer’s submission that the proposed bargaining unit was not a cohesive and distinguishable group. The Union said that any organisation that was engaged in seeking and delivering public service contracts needed to be mindful of the specifics of each discrete contract and that distinguishing the workers on a given contract was part of what such organisations needed to do.

10) The Union said that on winning successive Wigan Council contracts, the Employer had inherited a pre-existing workforce through a process of TUPE transfers; were Wigan Council to choose a different provider in the future, the Union anticipated that the staff would again be TUPE-transferred to a new provider. The Union said that the consequences were that staff formed part of an “organised grouping” for the purposes of regulation 3(3) of TUPE 2006 and, inevitably, may not be employed on the same terms and conditions as other staff employed elsewhere in the UK by the Employer. Not all of the workers employed by the Employer, therefore, had the same terms relating to pay, hours, and holidays.

11) The Union said that the Employer’s premises in Wigan and Leigh were leased by the Council with the Council having mandated that these premises be used by the service provider.^{[footnote 2]} The Union said that it was also clear that staff who were assigned to work on this contract were regarded as a distinct group from the remainder of the Employer’s workforce. The Union highlighted the requirement in the Service Specification that quarterly review meetings be held between the commissioners and the provider. ^{[footnote 3]} The Union pointed to the standard agenda for such meetings which included an item relating to staffing which was limited to staff employed to work in Wigan and Leigh rather than elsewhere within the UK. The Union said that this item included direct staff costs, administrative staff costs, training and staff development, and recruitment, showing that the Council took a continuing formal interest in both quantitative and qualitative employment matters. The Union also referred to the “Deal for Providers” in the Service Specification which established a “reciprocal relationship” between the Council and providers and listed among a provider’s undertakings “a decent reward and recognition package for your well motivated and supported workforce”.^{[footnote 4]} The Union said that for an organisation like the Employer, with its funding coming primarily from local authority contracts, it was inevitable that it needed to respond to customer/commissioner requirements and tailor its service and employment practices accordingly. The Union believed it was therefore wholly appropriate for the bargaining unit to be defined at the level of the contract in Wigan and Leigh.

12) The Union submitted that the workers in the proposed bargaining unit were an easily identifiable group. The Union attached to its submissions the Employer’s organisation chart which set out its employees and the structure of the service in Wigan (and Leigh). The Union said that the Employer was able to differentiate between its employees who were based in Wigan and Leigh when providing the specified information for the CAC and the Union as part of the recognition application process. The Union said that staff in Wigan and Leigh did not routinely cover work in any other council area because they were employed to service the Council contract in Wigan and Leigh, The Union said that its members had reported that the only circumstances in which staff had moved outside the boundaries of the Borough had been in response to an invitation to apply for a fixed-term secondment to another area during which their substantive post remained in Wigan and Leigh. The Union said that there was no allocation of Wigan and Leigh staff to other geographical areas to cover day-to-day fluctuations in demand nor was there any regular incoming movement of staff from outside Wigan and Leigh. The Union noted that although the Employer referred to the provision of shadowing and development opportunities by staff working in other service locations the Employer had made no claim that there was regular movement of workers in or out of Wigan and Leigh to cover peaks in demand.

13) The Union acknowledged that each decision of the CAC was fact specific but referred to the fact that in UNISON v Craegmoor Group Ltd TUR1/249/03, 29 May 2003 it had secured statutory recognition in respect of one care home in circumstances where the employer employed 7,000 staff and operated 277 establishments. The Union said that the Employer did not have any national negotiating structure in place or any analogous consultation forum where terms and conditions in respect of pay, hours and holidays were negotiated or even consulted upon; certainly the Employer had not referred to any such structures in its correspondence with the CAC. The Union said that as far as it was aware the Employer did not recognise either the Union or any other trade union either nationally or locally. The Union submitted that there was no practical or logical reason why its proposed bargaining unit was not compatible with effective management and it was difficult to envisage what insuperable difficulties could arise if that bargaining unit were established.

14) The Union said that the Employer employed staff on a variety of pay and conditions; it had heard the Employer’s Head of People Operations say that it did not just have a two-tier workforce but a ‘32-tier’ workforce. The Union said that this was partly due to TUPE transfers; the Employer bids for public service contracts and where successful, it inherits TUPE-transferred staff from other employers. However the Union said that, from speaking to its members in Wigan and Leigh, it believed that this was not the sole reason for the variation as the Union had not seen consistent application of the Employer’s own pay structure or job descriptions for staff that it had recruited directly to the organisation. The Union said that some staff had been offered an increase in their own individual pay to deter them from leaving the organisation. The Union said that it appeared from this that local managers had considerable discretion in the pay rates that individual staff received in Wigan and Leigh. The Union said that it hoped that local bargaining arrangements in Wigan and Leigh would begin to address the inconsistencies and unfairness that staff were currently experiencing and lead to more consistent application of pay and reward policies.

15) The Union denied that recognition would increase discord or entail undue pressure on management; rather the Union believed that greater transparency and negotiation could better reconcile the existing differences between TUPE’d and non-TUPE’d staff and help to reduce tensions between people who were working together. The Union said that the concerns raised about recognition potentially tying up management time were understandable from an organisation that was new to working with unions, but the Union believed these concerns to be misplaced. The Union said that recognition would lead to the establishment of a forum where the views of staff could be heard by local management and constructive employee relations and greater partnership working would help to reduce the pressures on managers. The Union said that, far from recognition meaning that there would be a new requirement for multiple conversations, as the Employer had submitted, the Union’s proposed bargaining unit would enable there to be a single, collective conversation which would be a marked improvement in terms of fairness and efficiency compared to the existing practice.

16) The Union denied that the current management of the Employer’s workforce was characterised by coherence or consistency or that recognising the Union for the bargaining unit at Wigan and Leigh would mean a departure from a coherent or uniform status quo. The Union said that the Employer’s submission overstated the extent to which the proposed bargaining unit was integrated into the national organisation. The Union noted the Employer’s statement that the funding for the service contract covered roles across the Employer’s organisation as a whole but contended that this element was best seen as the equivalent of a management fee or administration charge. The fact that a bidding organisation had to have regard to its own overheads when seeking a contract from a Council did not amount to the Council committing in any way to funding the Employer’s national operation; moreover, this contribution to the central costs of the organisation was made only while the Employer held the contract. The Union said that there was no evidence that recognition would in any way compromise the central services functions which the Employer used to support workers in the proposed bargaining unit. The Union also denied that decisions about the employment of all roles in the Employer’s workforce were applied consistently across the workforce as the Employer had claimed; the organisation operated many different pay rates and terms and conditions, and staff working in the proposed bargaining unit worked alongside colleagues on different pay and conditions. The Union said that it had no knowledge of the Hays Job Evaluation scheme referred to by the Employer being applied to recruited staff in Wigan and Leigh and that its members in this group had described anomalies in pay levels within the group. The Union said that it did not see any contradiction between the proposed bargaining unit and the continuing application of national rules, policies and procedures from the wider organisation on a role-specific basis. The Union said that while some staff in specific disciplines might have their training or professional standards set nationally, they remained based in and part of a specific contracted service in a specific geographical location; there was no evidence that union recognition would undermine adherence to national policies and procedures nor that it would affect shadowing and development opportunities. The Union also denied that recognition would create division between employees carrying out the same roles in the Employer’s sister geographical locations given that the Wigan and Leigh service was operationally distinct and differences between the pay and conditions of employees in, and within, different places already existed.

17) The Union submitted that a bargaining unit in Wigan and Leigh would not lead to a number of small bargaining units or to the fragmentation of bargaining units in the Employer’s workforce nationally. The Union said that it had members in several other council areas around the country who were employed by the Employer. The Union said that a membership report in October 2019 had shown that the Union had a total of 190 members employed by the Employer nationally, dispersed from Cornwall to Glasgow. The Union said that Wigan and Leigh had the highest number of members of any locality in the UK. The Union said that, on the evidence currently available, there was no evidence that recognition would be or was being sought in respect of workers employed in other localities. Accordingly, there was no evidence of demand for collective bargaining in any other part of the Employer. The Union further relied upon the facts of UNISON v Craegmoor Group, and Lidl, where recognition was sought in respect of a group of 223 warehouse operatives at one of seven distribution centres which comprised 1.2% of the employer’s national workforce. The Union said that on basis of its current level of membership, there was no prospect of a nationwide recognition application. Consistent with Lidl there was no risk of proliferation because this factor specifically related to fragmentation of collective bargaining. The Union also said that in accordance with the view of Collins J in R (Cable & Wireless Services UK Ltd v CAC [2008] IRLR 425 at [17]

it is important to see whether such a unit is self-contained. Fragmentation carries with it the notion that there is no obvious identifiable boundary to the unit in question so that it will leave the opportunity for other such units to exist and that will be detrimental to effective management.

The Union said that its proposed bargaining unit had a defined geographical boundary including those employed on the specific Council funded contract.

18) In relation to the characteristics of workers, the Union submitted that the workers were all employed in the delivery, administration and management of the drug and alcohol rehabilitation service in Wigan and Leigh. The Union said that the list provided to the CAC and the Union by the Employer detailed the various positions and job families that the staff covered. The Union said that these staff shared a community of interest distinct from other workers employed elsewhere by the Employer. The Union said that staff defined by the Employer as being in the ‘reporting unit’ of Wigan were all based in one of three buildings in Wigan (Coops Recovery Centre) and Leigh (Kennedy House, Old Court House).

19) In relation to the alternative bargaining units proposed by the Employer the Union said that it did not see any merit in having bargaining units differentiated by job families. The Union said that all the job families represented amongst the workforce in Wigan and Leigh were present for the same purpose; to fulfil the requirements of the contracted service. The Union said that the Employer’s proposal for bargaining units atomised along job family lines had the potential to increase discord and erode goodwill, collaboration, and effective team working as there would effectively be several separate bargaining tables in action at once; this would increase the burden of both management and the Union in conducting negotiations which would become repetitive and time consuming for all concerned. The Union contended that, contrary to what the Employer had suggested, a bargaining unit atomised on job family lines would mean the Employer requiring multiple conversations with different groups which would be unworkable whereas the the Union’s proposed bargaining unit would have all job families represented at a single bargaining table. The Union submitted that the Employer’s proposal would clearly not be compatible with effective management for the purposes of paragraph 19B(2)(a) of the Schedule. In relation to the Employer’s proposal of a nationwide recognition agreement, the Union said that on the basis of its current level of membership, there was no prospect of a nationwide recognition application. The Union said that, consistent with Lidl, there was no risk of a proliferation of bargaining units across the different locations as suggested by the Employer in its submission. Summary of the Employer’s submissions

20) The Employer explained that it was a registered charity and one of the UK’s largest specialist drug, alcohol, mental health and behavioural change charities. It supported adults, young people, families and communities from over 80 geographically different service centres, treatment centres, and rehabilitation projects across England and Scotland and employed approximately 1531 staff. The Employer was funded largely through contracts from commissioning local authorities.

21) The Employer submitted that it was impracticable to have the Wigan and Leigh service as a discrete bargaining unit as it was not compatible with the effective management of the 1531 workforce as a whole. The Employer said that the proposed bargaining unit was not a cohesive and distinguishable group. The Employer submitted that the appropriate bargaining unit should be the Employer’s workforce as a whole, or that bargaining units in relation to job families may be appropriate, for example “all Clinicians” or “all Frontline drug & alcohol workers” or “all Young People’s workers” across the whole workforce to be capable of effective management. The Employer said that this would not so fundamentally impact the Employer’s already lean resources and its ability to manage.

22) The Employer questioned whether the Union’s proposed bargaining unit was sufficiently clearly defined. The Employer suggested that it was not as there was no attempt to define the job titles and employment status of the persons said to form the bargaining unit; it was also unclear whether the Service Manager was or was not included in the bargaining unit. It was submitted that this was impermissible per GMB and Bell Educational Trust (TUR1/516/06).^{[footnote 5]} The Employer said that in the light of the parties’ rival contentions as to an appropriate bargaining unit it was incumbent on the CAC to determine the same per URTU and First Line Contracts (TUR1/454/05). The Employer contended that the Union had wrongful invited the CAC to adopt a myopic focus on the Union’s view as to the appropriate bargaining unit; as was made plain in the CAC Guidance, paragraph 19B(4), and TSSA and Gatwick Express (TUR1/261/03) the rival contentions of the employer were material and the CAC must take into account any views that the employer has on any other bargaining unit that it considers would be appropriate. Moreover it was permissible that the CAC rejected both the Union and Employer formulations of the bargaining unit and formulated its own per Unite-v-Knightsbridge Guarding (TUR1/624/08).

23) In relation to the need for the unit to be compatible with effective management, the Employer referred the Panel to the guidance of Harvey on Industrial Relations and Employment Law NI-1254 which stated (the Employer submitted accurately):

In the present context, therefore, the concept of effective management is to be understood as relating principally to methods of resolving issues of pay, hours and holidays by means of collective bargaining (GMPU and Ritrama (UK) Ltd (TUR1/178/02, 11 July 2002), per the CAC). In paraphrase: taking account of the statutory criteria and of the way in which the undertaking operates and is organised, does the proposed bargaining unit offer a sensible and workable vehicle for settling by collective bargaining the pay, hours and holidays of the workers concerned?

24) The Employer said that it did not currently have any existing national or local bargaining arrangements with any trade union or non-independent body. The Employer said that it had a largely successful communications and engagement strategy for the workforce as a whole and voluntarily undertook initiatives including staff surveys, local and wider team meetings and information sharing events where views were sought from workers including taking feedback on shaping the organisation strategy and priorities.

25) The Employer said that the Union’s proposed bargaining unit appeared to be based on geography and the Employer’s contract with the Wigan and Leigh local authority commissioners. The Employer said that commissioners commissioned the Employer to deliver services within a geographical boundary but did not specify or exercise control over the makeup of the workforce, or the terms and conditions of employees including working hours, pay and holidays, which were determined by and left to the control of the Employer. The Employer said that its pay award was a discretionary award which was applicable to all those on the Employer’s terms and conditions; it did not apply to those who had TUPE’d to the Employer and who received a contractual pay increase under their previous employer’s terms and conditions. The Employer said that the discretionary award was considered annually by the Employer and authorised by the Employer’s Trustees and was made on the basis of national affordability. The Employer said that awards were not made on a geographical or regional basis or following any specific arrangements with individual commissioners. The Employer said that the contract with the commissioner did not make the workers in the proposed bargaining unit a completely separate unit or entity. The location of the workers was discrete, but the workforce within the proposed bargaining unit was made up of workers covering many varied roles, on different terms and conditions, who were part of and governed by the larger organisation. The Employer said that the characteristics of workers falling within the proposed bargaining unit had been shared with the Union as part of the membership check. The list of workers was many and varied and reflected the many and varied roles that the Employer relied upon to deliver services to vulnerable people across England and Scotland to fulfil its charitable purposes.

26) The Employer said that the local authority commissioner paid the Employer to run the services in the proposed bargaining unit of Wigan and Leigh but the funding covered roles across the Employer’s organisation as a whole. The Employer supported the workers in the proposed bargaining unit though its central services function. The Employer said that the Data, Communications and Digital, Finance and Payroll, Human Resources, Learning and Development, Medical Management, Clinical and Medical plus the executive structure were all paid for to some extent by the commissioners of the services run in the proposed bargaining unit. The Employer said that decisions about the employment of all roles in the Employer’s workforce were made in line with a “central scheme of delegation” and were applied consistently to all workers across the workforce. These decisions included the fundamental concepts of how people were paid, working hours, holidays and other leave, and what training was available and appropriate for the different aspects of the workforce. The Employer said that jobs were evaluated using the Hays Job Evaluation Scheme and that the Employer had an organisational pay system and pay table so that all roles across the organisation were subject to the same governance. There was an exception for individuals who were not on the Employer’s terms and conditions as they were the subject of a transfer of employment under TUPE. The Employer said that it regularly transferred workers into its employment following a change in service provision and had shared with the Union that it operated with several different terms and conditions of employment due to the desire to protect individual positions and preferences on terms and conditions. This was a challenge for the Employer, which said that it ensured that all contractual and legal obligations were met for the individuals affected by TUPE. In addition, the Employer said that it ensured that it protected its workforce as a whole in terms of equal pay.

27) The Employer said that to operate collective bargaining for pay, working hours and holidays with a discrete group of 76 staff based on a geographical location would prevent effective management of the service, and create potential discord within the service. The Employer said that it would also put undue work pressure on the Employer’s management team as well as the lean central services functions, which would not have the resources or capacity to treat those workers differently. The Employer said that treating a specific geographical location differently for the purposes of collective bargaining would give rise to the possibility of the fragmentation of bargaining units across each geographical location. The Employer said that it already managed and respected its legal obligations under TUPE; to impose geographical differences for a group of varied worker roles was not compatible with effective management. The Employer said that the workers within the proposed bargaining unit were of many varied disciplines and although the workers in Wigan and Leigh ultimately reported to a Director of Operations specific disciplines, for example, the clinical staff’s roles and responsibilities, would be governed by decisions made by the Executive Medical Director, the Director of Nursing and the Director of Pharmacy. The Employer stated that, although it could be said that the group of workers in the proposed bargaining unit came under a local management umbrella, those from individual disciplines were subject to rules policies and procedures from the wider organisation on a role specific basis.

28) The Employer said that workers within the proposed bargaining unit largely operated under the organisational management structure and worked towards the same employment policies, employee handbook and code of conduct as all workers across the Employer’s sites. All workers underwent induction and on-boarding processes that were specific to the role that they carried out; were paid in accordance with the Employer’s national pay table; and performed roles with the focus of enabling the Employer to meet its charitable purposes. The Employer said that, regardless of terms and conditions, all its workers were managed under the same operational policies; for example, while sick pay entitlement may differ, the management of sickness absence and process followed was the same for everyone. The Employer said that all Recovery Workers in the proposed bargaining unit were required to have the same skills as Recovery Workers in the rest of the Employer’s services in, for example Liverpool, Lincoln or Cornwall. The Employer said that on occasion, the Employer’s workers such as Recovery Workers, Clinicians and Team Leaders who were based in the proposed bargaining unit would be joined by other Recovery Workers, Clinicians and Team Leaders from other service locations of the Employer and vice versa. The Employer said that this provided shadowing and development opportunities for the Employer’s workforce as a whole.

29) The Employer submitted in addition that workers in the proposed bargaining unit were not able to be effectively treated as a discrete group for pay, working hours and holidays, as not only did the roles in the proposed bargaining unit cover various disciplines; individuals in the roles were not all on the same terms and conditions of employment. For example, one Team Leader in the proposed bargaining unit may be on the Employer’s terms and conditions of employment whereas another may be on NHS Agenda for Change terms and conditions; this was the same for other roles in the proposed bargaining unit, for example, the Recovery Workers. The Employer said that to further fragment the ability to effectively manage the pay, working hours and holidays of the groups of workers employed in the proposed bargaining unit would make effective management an impossible task and would risk diverting managers away from their core duties and service delivery. The Employer said that to agree a specific bargaining unit based on the geography of the various roles would also create a division between employees carrying out the same roles in the Employer’s sister geographical locations. The Employer said that it would challenge the effective management of the teams and the various roles performed within them; and potentially erode goodwill, collaboration and effective teams across geographical locations through the future divergence of terms and conditions of employment relating to pay, hours and holiday; particularly in situations of cross-team developmental and learning opportunities. The Employer said that it did not offer a sensible workable vehicle for the Employer and the Union to have collective bargaining on working hours, pay and holidays.

30) The Employer said that it currently managed its legal obligations in terms of workers who were on different terms and conditions and creating this specific bargaining unit would mean the Employer requiring multiple conversations with different groups which would be unworkable given the limited charity resources of the Employer. The Employer said that it would significantly impact the flexibility of the workforce and would complicate cross services development opportunities, secondments and career progression. The Employer submitted that establishing a collective bargaining unit consisting only of geographically based workers in this way would not aid or encourage fair and efficient practices and arrangements in the workplace and would be inconsistent with the workplace arrangements and processes that the Employer currently had in place. The Employer submitted that the bargaining unit proposed by the Union would create a fragmented geographical location and would have the potential to lead to further applications for recognition for other geographical groups of workers and thus to increasing fragmentation across the organisation. The Employer said that the Union’s proposed bargaining unit was incompatible with the Employer’s organisational and operational structure and the centralised approach to the organisation. The Employer said that creating a geographical bargaining unit would ignore the commonality of terms and conditions of employment and the organisation’s cohesive purpose; lead to further inconsistencies in terms and conditions for some employees carrying out the same activities; and would likely erode goodwill, collaboration and effective team working. In its second submissions the Employer submitted that it properly adopted a ‘one organisation’ ethos and thus a divisive bargaining unit, as inevitably proposed by the Union, was contrary to effective management as per Unite and Kettle Foods Limited (TUR1/557/07). It was also submitted that the same introduced undue fragmentation as per GMPU-v-Getty Images (TUR1/104/01). For these reasons, in addition to those referred to above, it was submitted that the Union’s proposed bargaining unit was not compatible with effective management. The Employer said that the Union’s attempts to side-step that essential difficulty in its initial submissions was something which the CAC ought not to permit.

31) The Employer contended that the Union’s statement that the Council had mandated in the Service Specification the premises occupied by the Employer in Wigan and Leigh was incomplete and therefore misleading as it was made plain in the Service Specification that additional premises were to be utilised at the cost of the Employer.^{[footnote 6]} The Employer also contended that the Union’s submission that staff who are assigned to work on this Council contract are regarded as a distinct group from the remainder of the Employer’s workforce was erroneous. The Employer said that how a contractor viewed staff assigned to the performance of the contract could not logically inform the question of how the Employer viewed and treated those staff. That was the issue which, it was submitted, the CAC was required to consider.

32) The Employer said that the contentions advanced by the Union in respect of existing national and local bargaining arrangements were unevidenced and were disputed by the Employer; even if they were correct, they were irrelevant. The Employer said that the issue was the appropriateness of the bargaining unit and not whether it would allow the Union an opportunity to correct alleged unfairness and inconsistencies (themselves denied). In relation to the desirability of avoiding small, fragmented bargaining units, the Employer contended that the Union’s submissions as to what it contended to be the absence of fragmentation ignored the words of the Court of Appeal (Underhill LJ) in Lidl at [38]

I acknowledge that the situation which would obtain if the GMB was recognised for the warehouse operatives in Bridgend, but nowhere else, might—though not, I think, very naturally—be described as one where the system for setting the core terms and conditions for Lidl’s workforce was “fragmented”, in the sense that in Bridgend such terms were determined by collective bargaining whereas elsewhere they were not; also that the proposed bargaining unit could be described as “small” when compared with Lidl’s overall workforce. It is not difficult to see how, to Lidl at least, that situation could be regarded as undesirable. But that kind of fragmentation is not the mischief referred to by paragraph 19B(3)(c): it does not involve fragmentation between bargaining units or fragmented collective bargaining. That does not mean that Lidl’s concerns about having a small island of union recognition in a sea of non-recognition are necessarily irrelevant to the issue of whether the proposed unit is appropriate: it only means that they do not come in under paragraph 19B(3)(c). They still fall to be considered under the more general heading of their compatibility with effective management—or indeed, since the considerations itemised in paragraph 19B are not exhaustive, their appropriateness generally. The only difference is that the kind of “fragmentation” of which Lidl complains is not to be treated as axiomatically undesirable.

33) In relation to the characteristics of workers the Employer noted that the Union had stated in its initial submissions that “We would wish to include all staff employed in Wigan and Leigh on the Wigan Council contract in the bargaining unit, with the exception of the Service Manager.” The Employer noted that no explanation for this omission was given in the Union’s submission and such a contention flew in the face of the points already made by the Union under this heading.^{[footnote 7]} It was also contrary to the Union’s own definition of the bargaining unit in its application.

4. Information relating to the roles of specified managers

34) In a letter to the parties dated 28 April 2020 the Case Manager informed them that the Panel had read their initial and second submissions and would welcome additional information arising from the organisation chart that was appended to the Union’s submissions. The letter requested a short description of the roles performed by the Director of Operations; the Contracts Manager; the Service Manager; and the two Operations Managers shown on that chart and asked that the responsibilities (if any) of the individuals performing these roles for negotiating terms and conditions of employees within the proposed bargaining unit should be specifically addressed. The parties were informed that it was not necessary to provide formal job descriptions, person specifications, written statements of terms and conditions, and the like.

35) In a letter to the Case Manager dated 11 May 2020 the Union stated that there were decisions that were taken by the Service Manager that impacted upon the terms and conditions of individual workers in the proposed bargaining unit. The Union stated that individual staff had on occasion agreed an increase in their pay with the Service Manager. The Union said that it was aware of circumstances where changes in individual terms and conditions were made, including: (i) where a member of staff had indicated to management their intention to leave their job (a retention payment), (ii) where a member of staff had highlighted an increase in their work responsibilities and requested higher remuneration to reflect this, and (iii) where a member of staff who had been TUPE-transferred into the organisation negotiated moving to the Employer’s contract. The Union said that its understanding was that such changes in individual terms and conditions had been agreed with the local Service Manager on the basis of the specific financial and service situation in Wigan and Leigh and that the Service Manager had the authority to make such decisions.

36) The Union commented on the roles of the individual managers as follows:

(a) Director of Operations: leads services across the North West region, including contracts in Merseyside, Lancashire and Greater Manchester. The Union was not aware of the Director of Operations having any role in deciding local terms and conditions in Wigan and Leigh.

(b) Contracts Manager: reports to the Director of Operations; works on a sub-regional basis managing contracts for two services: Stoke and Wigan. The Union said that the Contracts Manager sometimes supported the Service Manager in meetings with groups of staff for example, in relation to a TUPE transfer. The Union said that the Contracts Manager appeared to have some responsibility for setting the overall budget for the service in Wigan and Leigh and was concerned with commercial aspects of the contract. The Union said that it was not aware of the Contracts Manager having any formal role in deciding local terms and conditions or in bargaining with individual members of staff.

(c) Service Manager: reports to the Contracts Manager; job role is wholly within Wigan and Leigh and does not deal with contracts in any other part of the Employer’s organisation. The Union said that the Service Manager had overall responsibility for managing the local service in Wigan and Leigh and for managing the budget. The Union said that its understanding was that the Service Manager had autonomy over local pay awards for individual employees in the Wigan and Leigh service.

(d) The two Operations Managers: report to the Service Manager; their job roles are wholly within Wigan and Leigh, with one having responsibility for Leigh, the other for Wigan. The Union said that the Operations Managers meet with other agencies, lead on service development, and manage the team leaders but the Union did not believe they had the authority to agree staff pay and conditions.

37) In an email to the Case Manager dated 12 May 2020 the Employer stated that all the roles referred to in paragraph 38 below were focussed on the delivery of its services and that none had any responsibility for negotiating terms and conditions of employment for any groups of employees or the employees in the proposed bargaining unit. The Employer said that these roles were able to agree local management arrangements for individuals, for example a different working pattern for an individual employee, following the Employer’s flexible working policy, or authorising when an individual took annual leave under the Time Off policy. However the length of the FTE working week, amount of holidays due to employees, the annual pay rise and other terms and conditions of employment were fixed by the organisation’s Executive team and were subject to approval by the Trustees.

38) The Employer described the role performed by each category of manager as follows:

(a) Director of Operations. The Director of Operations (North West) is accountable for four Contracts Managers who in turn oversee 12 separate services of approximately 388 staff from Blackpool to Herefordshire. Reports in to the Executive Director for Operations (North) who sits on the Employer’s Executive. Job summary: Accountable for the delivery of a portfolio of high performing services which radically improve people’s chances of getting better. Provide clear direction and leadership which transforms our organisation to get the best from each other and delivers our strategic goals. Lead and performance manage a regional operations team against internal and external key performance indicators. Ensure services operate and are monitored in line with organisational pricing strategy Develop positive working relationships with local stakeholders, including local commissioning bodies, partner organisations and services users. Ensure continuous improvement and quality assurance, including Care Quality Commission (CQC), in service delivery, meeting the needs of service users, partners and commissioners. Strategically influence commissioning bodies and collaborate with Business Development colleagues to expand our offer.

(b) Contracts Manager. The Contracts Manager (Wigan and Stoke) leads three separate services, the Wigan and Leigh service and two services in Stoke totalling 103 staff. Reports in to a Director of Operations.
Job summary To lead a large service or multiple services distinguished by size, value and complexity. To deliver high quality recovery-orientated services (both clinical and non-clinical) for people with drug and alcohol misuse problems or mental health issues To engage with relevant stakeholders to ensure the Addaction partnership is known positively and has a high profile within the sector To work collaboratively with local partners and senior staff in the Addactions Operations Directorate to deliver high quality services to users that are in line with Addaction business strategy and local business plans Ensure compliance with the external regulatory bodies, such as CQC, working closely with senior colleagues in the operations directorate sharing effective practice as required. To lead and manage the staff within designated teams to ensure that staff are well informed, inspired and engaged with the strategic objectives of Addaction and that a cohesive culture is developed. To communicate Addaction’s values and deliver its mission, corporate strategy and business plans.

(c) Service Manager . The Wigan and Leigh Service Manager leads only the Wigan and Leigh service. Reports in to a Contracts Manager.
Job Summary To be responsible for the delivery and development of high quality recovery-orientated services (both clinical and non-clinical) for people with drug and alcohol misuse problems or mental health issues. To engage with relevant stakeholders to ensure Addaction is known positively and has a high profile within the sector. To work collaboratively with local partners and senior staff in the Operations Directorate to deliver high quality services to users that are in line with Addaction’s business strategy and local business plans. To ensure compliance with the external regulatory bodies, such as CQC, working closely with senior colleagues in the operations directorate sharing effective practice as required. To undertake the CQC registered manager role as required. To lead and manage the staff within designated teams to ensure staff are well informed, inspired and engaged with the strategic objectives of Addaction and that a cohesive culture is developed (circa 30-50, maximum 80).

(d) Operations Managers. The two Operations Managers in the Wigan and Leigh service report directly to the Service Manager, each having lead responsibility for one site. Job summary To be part responsible for delivery of high quality recovery-orientated services (both clinical and non-clinical) for people with drug and alcohol misuse problems or mental health issues (thematic or geographic). To engage with relevant stakeholders to ensure Addaction is known positively and has a high profile within the sector. To work collaboratively with local partners and senior staff in the Operations Directorate to deliver high quality services to users that are in line with Addaction business strategy and local business plans. To ensure compliance with the external regulatory bodies, such as CQC, working closely with senior colleagues in the operations directorate sharing effective practice as required. To lead and manage the staff within designated teams to ensure that staff are well informed, inspired and engaged with the strategic objectives of Addaction and that a cohesive culture is developed (circa eight direct reports and total team number no more than 40).

5. Considerations

39) The Panel is required, by paragraph 19(2) of the Schedule to the Act, to decide whether the proposed bargaining unit is appropriate and, if found not to be appropriate, to decide in accordance with paragraph 19(3) a bargaining unit which is appropriate. Paragraph 19B(1) and (2) state that, in making those decisions, the Panel must take into account the need for the unit to be compatible with effective management and the matters listed in paragraph 19B(3) of the Schedule so far as they do not conflict with that need. The matters listed in paragraph 19B(3) are: the views of the employer and the union; existing national and local bargaining arrangements; the desirability of avoiding small fragmented bargaining units within an undertaking; the characteristics of workers falling within the bargaining unit under consideration and of any other employees of the employer whom the CAC considers relevant; and the location of workers. Paragraph 19B(4) states that in taking an employer’s views into account for the purpose of deciding whether the proposed bargaining unit is appropriate, the CAC must take into account any view the employer has about any other bargaining unit that it considers would be appropriate. The Panel must also have regard to paragraph 171 of the Schedule which provides that “[i]n exercising functions under this Schedule in any particular case the CAC must have regard to the object of encouraging and promoting fair and efficient practices and arrangements in the workplace, so far as having regard to that object is consistent with applying other provisions of this Schedule in the case concerned.” The Panel’s decision has been taken after a full and detailed consideration of the views of both parties as expressed in their written submissions; the answers provided by both parties to questions posed by the Panel; and the documentary evidence submitted by the parties.

40) The Panel’s first responsibility is to decide, in accordance with paragraph 19(2) of the Schedule, whether the Union’s proposed bargaining unit is appropriate. The Panel notes that it cannot reject the Union’s proposed bargaining unit because it feels that a different unit would be more appropriate nor, in considering whether it is compatible with effective management, can it consider whether it is the most effective or desirable unit in that context.^{[footnote 8]}

41) The Panel considers that the Union’s proposed bargaining unit is compatible with effective management. The Panel considers that the Union’s proposed bargaining unit consists of a readily identifiable group of workers all of whom are engaged on a contract between the Employer and Wigan Council to deliver a specified service. The Panel does not agree with the Employer’s contention that they are not a cohesive and distinguishable group.

42) The Employer’s submitted that the proposed bargaining unit was not sufficiently clearly defined for two reasons: first, because there was no attempt to define the job titles and employment status of the persons said to form the bargaining unit and second, because it was unclear whether the Service Manager was or was not part of the bargaining unit. In relation to the first submission, the Panel does not consider it a prerequisite that a bargaining unit should be defined in terms of job titles and employment status; the relevant issue is whether the roles which are contained within it can be readily identified from the description used. In this case the Panel considers that the roles can be readily identified. The Panel also observes, in this connection, that the Employer was able to provide without apparent difficulty information for the purposes of the membership and support check conducted by the Case Manager prior to the decision on acceptance of the application ^{[footnote 9]} and the specified information required under paragraph 18A of the Schedule following acceptance. The Panel does not agree with the Employer’s second submission that it is unclear whether or not the Service Manager is included in the bargaining unit. The Service Manager was included in the list of workers provided by the Employer for the purposes of the membership and support check and in the specified information provided pursuant to paragraph 18A. As set out in paragraph 7 above, in its initial submissions relating to the bargaining unit the Union sought to exclude the Service Manager, following which there was the exchange of correspondence between the Case Manager and the Union described in paragraph 7. The Panel considers that this exchange of correspondence put beyond doubt that the Service Manager is included in the Union’s proposed bargaining unit.

43) In its introduction to the description of the roles performed by the Director of Operations, the Contracts Manager, the Service Manager and the two Operations Managers the Employer stated that none of them had any responsibility for negotiating terms and conditions of employment for any groups of employees or the employees in the proposed bargaining unit, although they were able to agree local management arrangements for individuals such as a different working pattern pursuant to its flexible working policy. Given that the Employer’s evidence was that there are no bargaining arrangements at either national or local level the Panel does not find it surprising that none of these managers currently have responsibility for negotiations of this kind. However the job descriptions provided by the parties demonstrated that there is an organisational structure in place which is capable of managing collective bargaining with the Union’s proposed bargaining unit; the Contracts Manager for Wigan and Stoke reports to the Director of Operations (North West) who reports to the Executive Director (North) who in turn sits on the Employer’s Executive. The Panel considers, therefore, that the Union’s proposed bargaining unit is compatible with effective management under this organisational structure. The Union maintained that the Service Manager was authorised to make changes in individual terms and conditions of employment such as retention payments; higher pay to reflect increased responsibilities; and change from a TUPE’d contract to the Employer’s terms and conditions. The Employer did not directly address whether the Service Manager was authorised to make changes to individual contracts in this way (as opposed to engaging in collective negotiations) and the Panel makes no finding on this point. In considering the scope of the Union’s proposed bargaining unit the Panel notes that the Employer did not submit that the Service Manager, or any other manager within the proposed bargaining unit, should be excluded from it and the Panel considers their inclusion to be compatible with effective management in the light of the Employer’s organisational structure.

44) The Employer submitted that it adopted a ‘one organisation’ ethos and that a divisive bargaining unit of the kind proposed by the Union would be contrary to effective management on that ground. The Employer said that pay awards were discretionary and applied to all those on the Employer’s terms and conditions (although not to those who had TUPE’d over), and were considered on the basis of national affordability rather than being made on a geographical or regional basis or following arrangements with individual commissioners. The Employer said that jobs were evaluated using the Hays Job Evaluation Scheme and the pay table so that all jobs across the organisation were subject to the same governance. The Employer also said that working hours and holidays were made in line with a “central scheme of delegation” and applied consistently to all workers across the workforce. The Employer submitted that treating a specific geographical location differently for the purposes of collective bargaining would give rise to the possibility of fragmentation of bargaining units across each geographical location and that to impose this for a group of varied worker roles, on top of the Employer’s legal obligations under TUPE, would not be compatible with effective management. The Panel appreciates the Employer’s concerns but notes that any alteration to existing terms and conditions requires the consent of both parties to the collective bargaining process; moreover, in the Panel’s experience it is not uncommon for employers engaged in negotiations for staff within a specific bargaining unit to have regard to the implications for staff outside it. The Panel does not consider that the Union’s proposed bargaining unit is not compatible with effective management because it would mean that the Employer conducts collective bargaining in relation to staff engaged in the service provided under the Wigan Council-commissioned contract when it does not conduct collective bargaining in relation to staff elsewhere in the organisation. The Panel notes the Employer’s reference to the “possibility” of fragmentation of bargaining units across each geographical location. The Panel makes its decision on the basis of the evidence before it and notes that at the time of this decision there is no evidence before it of any demand for recognition for collective bargaining purposes in any other geographical location. The Employer stated that workers worked under the same employment policies, employee handbook, and code of conduct across all sites, with common induction and onboarding processes and skills specific to the role that they carried out. The Panel does not consider that the Union’s proposed bargaining unit presents any obstacle to the continued implementation of these common policies and processes and requirement for common skills across the Employer’s organisation.

45) The Employer stated that it supports the workers in the proposed bargaining unit through its central services function and that the Data, Communications and Digital, Finance and Payroll, Human Resources, Learning and Development, Medical Management, Clinical and Medical plus the executive structure were all paid for to some extent by the commissioners of the services run in the proposed bargaining unit. The Employer submitted that to have collective bargaining for pay, hours and holidays for a discrete group of 76 staff based on a geographical location would put undue pressure on the lean central services functions which would not have the capacity to treat those workers differently. The Panel does not consider that the Union’s proposed bargaining unit would have any adverse impact on the Employer’s ability to operate its central services function. In the event that the parties negotiated distinctive terms and conditions for the Union’s proposed bargaining unit the Panel notes that the Employer’s payroll and other administrative systems are already able to accommodate disparities between workers owing to some staff having been TUPE’d over from previous employers.

46) The Employer submitted that workers in the proposed bargaining unit could not be treated as a discrete group for pay, hours and holidays because not all individuals in the roles were on the same terms and conditions of employment and that the Union’s proposed bargaining unit would introduce a further element of fragmentation which would make effective management an impossible task. The Employer further submitted that this would risk taking managers away from their core duties and service delivery. The Panel appreciates that staff being TUPE’d into an organisation can make pay and conditions structures more difficult to manage than where there is no such element but does not accept that the existence of the Union’s proposed bargaining unit would of itself make effective management more difficult; as noted in paragraph 44 above changes to terms and conditions through collective bargaining require the consent of both negotiating parties. The Panel appreciates that engaging in collective bargaining may be an additional responsibility for managers but this necessarily follows in any organisation where collective bargaining has not previously existed. The Employer submitted that the creation of this bargaining unit would mean the Employer would be required to have multiple conversations with different groups. The Panel accepts the Union’s submission that the Union’s proposed bargaining unit has the capacity to enable matters relating to workers within that bargaining unit to be discussed in a single forum. The Employer further submitted that the Union’s proposed bargaining unit contained many and varied roles and that, although they all ultimately reported to the Director of Operations, specific disciplines such as clinical staff are governed by decisions made by the Executive Medical Director, the Director of Nursing and the Director of Pharmacy and are subject to rules, policies and procedures from the wider organisation on a role-specific basis. The Panel notes that it is not unusual for workers within a bargaining unit to be subject to different rules, policies and procedures depending on their area of specialism and does not consider their co-existence within a single bargaining unit to be a barrier to effective management.

47) The Union said that staff in Wigan and Leigh did not routinely work in any other council area and had worked elsewhere only on a fixed-term secondment; there was no allocation of Wigan and Leigh staff to other geographical areas to cover day-to-day fluctuations in demand. The Employer said that “on occasion” workers within the Union’s proposed bargaining unit were joined by workers from other service locations, and vice versa, and that this provided shadowing and development opportunities for the Employer’s workforce as a whole. The Employer further submitted that the Union’s proposed bargaining unit would create a division between employees carrying out the same roles in sister geographical locations and would challenge the effective management of the teams and potentially erode goodwill, collaboration, and effective team working across geographical locations through the future divergence of terms and conditions of employment relating to pay, hours and holidays, particularly in situations of cross-team development and learning opportunities. The Employer additionally submitted that the Union’s proposed bargaining unit would significantly impact on the flexibility of the workforce and would complicate cross services development opportunities, secondments and career progression. The Panel sees no reason why the Union’s proposed bargaining unit would interfere with either the Employer’s ability to offer development, learning and career progression opportunities of this kind or the ability of staff to accept them. The Employer itself provided evidence that, as matters stand, there are disparities in terms and conditions for individual roles within the Union’s proposed bargaining unit so the Union’s proposed bargaining unit would not create division where none previously existed. Moreover, as noted in paragraph 44 above, the extent to which there is future divergence from sister locations through collective bargaining depends upon what the parties themselves agree.

48) The Panel has also considered the matters listed in paragraph 19B(3) of the Schedule, so far as they do not conflict with the need for the bargaining unit to be compatible with effective management. The views of the Employer and the Union, as described earlier in this decision, have been fully considered. In relation to existing national and local bargaining arrangements, there are no bargaining arrangements of either description in place. In relation to the desirability of avoiding small fragmented bargaining units within an undertaking, the Union’s proposed bargaining unit would be the sole bargaining unit within the Employer. The Panel notes the Employer’s submission that acceptance of the Union’s proposed bargaining unit would have the potential to lead to further applications for recognition for other geographical groups of workers and thus to increasing fragmentation across the organisation. However at the time of the Panel’s decision there is no evidence before the Panel of any demand for recognition for collective bargaining purposes on the part of other workers within the Employer’s workforce. As far as the characteristics of workers are concerned, all those within the Union’s proposed bargaining unit are engaged on the Wigan-Council commissioned drug and alcohol rehabilitation service for adults and young people contract. In relation to location, all the workers in the proposed bargaining unit are based at Wigan and Leigh. The Panel has had regard to the object set out in paragraph 171 of the Schedule in reaching its decision.

6. Concluding observations

49) The Union submitted that staff who are assigned to work on the Wigan Council contract were regarded as a distinct group from the remainder of the Employer’s workforce. The Union evidenced in support of this submission requirements in the Service Specification to hold quarterly review meetings between the commissioner and the provider and reference in the standard agenda to various considerations relating to staffing. The Employer submitted that the Union’s analysis was erroneous and that how a contractor viewed staff assigned to the performance of the contract could not logically inform the question of how the Employer views and treats those staff. The Panel accepts the Employer’s submission and the Union’s submission on this point has played no part in the Panel’s decision.

50) The Union submitted that local bargaining arrangements in Wigan and Leigh would begin to address the inconsistencies and unfairness that the Employer’s staff currently experience. The Employer submitted that the issue was the appropriateness of the bargaining unit and not whether it would allow the Union an opportunity to correct alleged unfairness and inconsistencies (themselves denied). The Panel accepts the Employer’s submission and the Union’s submission on this point has played no part in the Panel’s decision.

51) The Employer said that it had a largely successful communications and engagement strategy for the workforce as a whole and that it voluntarily undertook initiatives including staff surveys, local and wider team meetings and information sharing events where views are sought from workers including taking feedback on shaping the organisation strategy and priorities. The Panel does not consider that the Union’s proposed bargaining unit presents any obstacle to the continuation of activities of this nature.

7. Decision

52) The appropriate bargaining unit is the Union’s proposed bargaining unit, namely “all We Are With You (formerly known as Addaction) staff engaged on the Wigan Council-commissioned drug and alcohol rehabilitation service for adults and young people contract”.

Panel

Professor Gillian Morris, Panel Chair

Mr Nicholas Caton

Ms Fiona Wilson

21 August 2020

1. On February 2020, the Employer informed the CAC that it was changing its name to ‘We Are With You’ and the CAC records were amended accordingly. ↩

2. Service Specification: Drug and Alcohol Service Specification for Adults and Young People (2018-2023), Tender Reference 167, Wigan Council, para 9.5.1; page 62. The Union attached a copy of the Service Specification to its submissions. ↩

3. As above, page 60. ↩

4. As above, pages 13 and 14. ↩

5. The Employer accepted that the CAC was not bound by its previous decisions and stated that references to previous determinations were provided for illustrative as opposed to precedential purposes. The Employer did not provide any details of these determinations beyond the name and application reference of the decision. ↩

6. Above, note 2, para 9.5 and page 62. ↩

7. This read as follows: “The workers are all employed in the delivery, administration and management of the drug and alcohol rehabilitation service in Wigan and Leigh. The list provided to the CAC and UNISON by … [the Employer] … details the various positions and job families that the staff cover. They share a community of interest distinct from other workers employed elsewhere by … [the Employer]. ↩

8. R (Cable and Wireless Services UK Ltd v Central Arbitration Committee [2008] EWHC 115 (Admin), Collins J at [9] ↩

9. Decision of 28 January 2020, paras 22-25. The job titles referred to in the Employer’s list of workers provided for the purposes of the check are recorded in the Case Manager’s report dated 31 December 2019. ↩